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Journal of Criminal Law and Criminology

Volume 47 | Issue 1

Article 16

1956

Arson's Corpus Delicti


William H. Hopper

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Recommended Citation
William H. Hopper, Arson's Corpus Delicti, 47 J. Crim. L. Criminology & Police Sci. 118 (1956-1957)

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ARSON'S CORPUS DELICTI


WILLIAM H. HOPPER
William H. Hopper is a special agent for the Mutual Investigation Bureau, Chicago,
and a graduate of the College of Arts and Science and the School of Law, Tulane University. He has also pursued special studies in police administration at Michigan State
College. An earlier paper of his, "Circumstantial Aspects of Arson" appeared in this
Journal, and in addition to extensive work in the investigation of these problems, Mr.
Hopper has appeared on numerous arson training programs held in the middle west
and southern United States.-EDITOR.

The purpose of this article is to provide the arson investigator with a working
knowledge of what constitutes the corpus delicti of arson. In order to successfully
prosecute an arson case we must have, and prove, three essential elements of the
crime-namely: (1) that a burning occurred; (2) that the burning was the result of a
criminal agency; and (3) that the accused was responsible for the criminal agency.
Our method of approach for attaining the above stated purpose will consist of the
following four steps: first, Definitions; second, Application of Principles; third,
General and Specific Examples; and fourth, Conclusions.
An attempt will be made to formulate a working hypothesis from each rule,
definition, or principle. However, in this connection some consideration must be given
to the various jurisdictional districts of the United States. While this article purports
to be the majority view, it is readily admitted that some jurisdictions do not conform
to said view-being in disagreement with the changing times. (This is the author's
opinion; and it is conceded that those who have not kept abreast of the current
advancement in criminal jurisprudence would be the last to admit such a fact. This
is not an argument for the majority views always being the legally correct view).
Before plunging into our subject matter there is one fundamental fact or principle
which must be stated and understood or otherwise we will be unable to fully comprehend this subject. In criminal law, or for that matter, in any phase of law and in
many other fields of endeavor there are few clear cut cases where we can state, as an
absolute, that black is black and white is white. Rather there are gradations of grayrunning from the coal black to the medium gray, the light gray, and finally to the
pure white. It has been stated that a true sign of maturity is the ability to distinguish
the important from the unimportant. And applying this statement to our problem,
it can be said that a true sign of the good arson investigator is his ability to relate the
preparation of his case to the scale of grays-black being a complete lack of evidence
of criminal incendiarism, and white the ultimate or consummated conviction of the
arsonist. Thus, do not expect a cure-all, an answer to all questions in this article.
However, do expect an explanation of the subject matter, and a possible workable
solution which we can apply in our everyday arson investigation.
118

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DEFINITIONS

Henry C. Black's Law Dictionary (St. Paul, West, 1933) has the following to say
on our subject matter:
conrus-Body; an aggregate or mass, (of men, laws, or articles;) physical substance, as
distinguished from intellectual conception. A substantial or positive fact, as distinguished from what is equivocal and ambiguous. The corpus delicti (body of an
offense) is the fact of its having been actually committed.
wrong, injury, violation, or offense.
DELCTI-The body of a crime. The body (material substance) upon which a
crime has been committed, e.g, the corpse of a murdered man, the charred remains of a
house burned down. In a derivative sense, the substance or foundation of a crime;
the substantial fact that a crime has been committed.

DELICT-a
CORPUS

Arthur F. Curtis in A Treatise on the Law of Arson (Buffalo, Dennis, 1936) states
in Section 6, and 486:
DELICTI-The mere burning of a building does not constitute the corpus delicti of
the crime of arson. There is no presumption that a burning building has been intentionally set on fire; on the contrary the presumption of innocence, which is accorded to
an accused, carried with it a presumption that the fire is of accidental or providential

CORPUS

origin. Thus, the corpus delicti requires, not only the burning of a building, but also that
the burning was caused by a criminal agency.
CORPUS DELICTI-In all prosecutions for arson there are two elements of the crime which
the prosecution must prove beyond a reasonable doubt: (1) the corpus delicti; that is, a

fire caused by a criminal agency; and (2) the identity of defendant as the one responsible
for the fire. The mere possibility that the fire was occasioned by spontaneous combustion
(sic) or by some other cause innocent of criminal intent, does not demand an acquittal,
for the jury must act on probabilities, not possibilities.
We can see from the above definitions that the presumption of accidental or providential origin of the fire must be rebutted. The court in Hurst v. State, had the following to say:
The presumption is that any fire is a result of accident and providential cause rather
than criminal design.... It must appear from either direct or circumstantial evidence,
beyond a reasonable doubt, that the fire was of incendiary origin and that the defendant
was the guilty party.
In connection with refuting the presumption remember that circumstantial evidence may be, and generally is, used to prove the corpus delicti. In State v. Perras,2
the court said:
The mere fact of the burning of a building is not sufficient to establish the corpus delicti,
for if nothing more appears it will be presumed that the fire was the result of accident or
some providential cause, rather than the result of a criminal design, but the incendiarism
may be proved by circumstantial evidence.
' 88 Ga. App. Rep. 798, 78 S. E. 2d. 80 (1954).
2117 Vt. 163, 86 A. 2d. 544 (1952).

WILLIAM H. HOPPER

[Vol. 47

APPLICATION OF PRINCIPLES

Curtis, Arson, in Section 282 states:


mere fact of a fire carries no presumption that it was caused by
deliberate human agency. On the contrary, the courts indulge the presumption, until
the contrary is shown, that the fire was of accidental or providential nature. Nothwithstanding that it may be difficult to convict for the offense of arson, the rule that upon the
prosecution devolves the burden of showing that the burning was the result of criminal
design, is inflexible.

ORIGIN OF FIRE-The

Thus, commencing with the origin of the fire, we must show that the burning was
the direct result of a criminal design. From past experience it is quite evident that
this cannot be proved in all cases of incendiarism. And even in those cases which are
actually accidental or providential we are not always able to show the exact cause of
the blaze. Nevertheless, this fact should not deter us from personal improvement
which in the long run will increase our proficiency in solving the individual arson
case.
In Smith v. State,' the facts were that defendant had arguments with both the
owner and occupant of the burned house. He had threatened the occupant. On the
morning of the fire the occupant built a small fire in a stove with wood that would

not ordinarily burn over thirty minutes. She left the house about 7:15, and her
mother locked up and left about 7:45. The stove fire was not replenished after 7:00
o'clock. The stove and electric wiring were in good condition. There was no lightning
that morning. About 8:30 o'clock defendant and wife drove up to house. Defendant
broke open door, and they went inside for about five minutes. They drove away but
returned in a few minutes and parked across the road. They watched the house
about three minutes before again driving away. The fire was discovered a few minutes
later. The court stated:
To support a conviction of arson it is necessary to show that the burning was not due to
an accidental or providential cause .... There were facts in evidence from which the jury
could infer that the origin of the fire was neither accidental nor providential.... From
these facts the jury was authorized to infer that the fire was criminal in its origin.

Although the arson investigator should never usurp the functions of the prosecutor,
it is still wise to keep in mind certain fundamental principles which the prosecutor
has to face in presenting our case before the court. Curtis, Arson, Section 239, has
the following to say on Order of Proof-Generally:
The strict order of proof requires that the State produce evidence of the corpus delicti
before presenting its evidence to identify the incendiary. A confession of the accused
should not be presented in evidence until the prosecution has presented sufficient evidence
of the corpus delicti to go to the jury on that point,.... Oral admissions of facts made by
the prisoner are distinguished from confessions, and it is not error to prove such admissions
before completing the proof of the corpus delicti.
385 Ga. App. Rep. 129, 68 S. E. 2d. 393 (1951).

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ARSON'S CORPUS DELICTI

Of course, some variance may be indulged at the discretion of the court. For example, it sometime happens that the evidence showing the incendiary nature of the
4
fire is the same evidence which indicates the criminal agency of the accused. In the
cited example, the State's case consisted of defendant's alleged confession and the
testimony of one witness who stated that defendant was employed at the cemetery
when a fire burned a tool shed on the cemetery grounds. In reversing the conviction
and remanding the case, the court stated:
While it has been held that a defendant's confession, when the corpus delicti is not otherwise proved, is insufficient for a conviction, this does not mean that the corpus delicti must
be proved by the evidence, aside from the confession, beyond a reasonable doubt. On the
contrary, it was early held that it is the mere naked confession, uncorroborated by any
circumstance inspiring belief in its truth arising out of the conduct of the accused or otherwise, which is held insufficient to convict, and the corroborating fact or facts in proof need
not necessarily, independent of the confession, tend to prove the corpus delicti. Direct and
positive evidence is unnecessary to prove the corpus delicti, and it is not essential that it
should be established by evidence independent of that which tends to connect the accused
with its perpetration.
It is probably best in most cases for the court to allow the prosecutor to present
his case as best he can without too strict an enforcement of the rules concerning order
of proof. Such a procedure would not necessarily contravene the constitutional rights
of the accused.
Probably one of the greatest periods of letdown, or relaxed feeling of good will,
occurs after a confession has been obtained in the investigation of an arson case.
Actually, this is the time for keen analysis; consideration of all circumstances and
factors; and a compilation of the case to determine if there is really sufficient evidence of probative value to assure a conviction in court. Many cases have been lost
right at this point. Let us consider what Curtis, Arson, has to say under Section 415:
CONFESSIONS--CORRoBoRATIo=N-The

rule that a confession cannot be considered as

evidence, unless the corpus delicti has been established by other evidence, refers only to
consummated crimes, and not to an attempt to commit arson.
In connection with the reference to attempt under the above section, consider
State v. Braathen.5 The facts in this case consisted of the following: A fire occurred in
defendant's house. State witnesses and photographs proved there was a burning and
charring of some of the wood in the interior. An oral admission by defendant was
admitted into evidence. He was charged with attempt to burn; and convicted. The
District Court granted a new trial; but this was reversed, and the case remanded with
instructions to trial court to enter judgment. The court in defining what constitutes
burning said: "It is sufficient if the fire is actually communicated to any part thereof,
however small." The court goes on to say that even though the State actually proved
arson, the defendant can still be convicted of attempt under the statute. Submitted
that the latter would not be true in all jurisdictions.
4

P eople v. Lueder, 3 Ill. 2d. 487, 121 N. E. 2d. 743 (1954).


b77 N. D. 309, 43 N. W. 2d. 202 (1950).

WILLIAM H. HOPPER

[Vol. 47

There are many cases of arson which are reduced to attempted arson or to some
other lesser offense for various reasons-one being an easy out for the prosecutor.
However, such action by the prosecutor, grand jury, or the court is not a duty,
privilege, or right of the arson investigator. If the investigator indulges in usurping
the functions of others, he is taking on responsibilities for which he is not authorized,
trained, or competent to uphold. Be this as it may, the arson investigator should know
and understand the statutes concerning arson and related crimes. With this knowledge
he will know that if there is any burning or charring, however slight, of any part of
the building or structure, arson has been committed, provided that he can prove the
corpus delicti. He will know that such charring is not an attempt, but the consummation of the crime of arson.
Curtis, Arson, in Section 416 states:
CONFESSIONS-SUFFICIENCY OF CORROBORATION-The statutory requirement that a conviction cannot be had upon a confession without additional evidence of the commission
of the crime, does not demand that the additional evidence, of itself, show the corpus
delicti beyond a reasonable doubt. A conviction cannot be sustained without proof of the
corpus delicti beyond a reasonable doubt, yet the jury may consider the confession when
deciding the ultimate fact of guilt.... In any case it is permissible to prove the corpus

delicti by circumstantial evidence.


Independent evidence may allow a consideration of the confession,6 and together
they may justify a conviction, although the independent evidence would not be

sufficient proof of the corpus delicti without the confession. 7 But remember that
motive alone is not sufficient corroboration for a confession to be admissible. In the
first case cited above, State v. Guastamachio,the facts were that defendant, manager
of a cafe, was in the basement around 1:00 o'clock in the morning. He locked up
and left about 1:15 o'clock; and the fire was discovered about 1:30 o'clock. A discarded wood ice box was found in the basement; and near it was a wooden barrel
containing rags and papers. Several burned barrel staves and paper were found near

the ice box which was charred from bottom to top. The assistant fire chief stated that
spontaneous combustion (sic) had caused the fire. The fire chief looked at scene and
then told defendant not to cleanup the debris. However, defendant and his father did
clean it up. The compressor and electric wiring were in good working condition after
the fire. The business was losing money; and the defendant's father had a financial
interest in the business. The defendant signed a written confession. In part of its

opinion the court stated:


To warrant a conviction, it must be shown upon the whole evidence beyond a reasonable
doubt (1) that a crime has been committed and (2) that the person charged therewith was
an active agent in the commission thereof. The former cannot be proven solely by extra-

judicial confession. Such a confession, however, may be considered in connection with other
independent material and substantial evidence to establish the corpus delicti.... The
fact that there was a motive for an incendiary fire, that the fire started about the time the
defendant was at the place where it started, that the debris in the cellar was cleaned up by
State v. Guastamachio, 137 Conn. 179, 75 A. 2d. 429 (1950).
Brower v. State, 217 Miss. 425, 64 So. 2d. 576 (1953).

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ARSON'S CORPUS DELICTI

the defendant contrary to the orders of the authorities and that other possible causes of the
fire had been eliminated constituted, when taken together, enough evidence that the fire
was incendiary to warrant the admission of the confession.
In Brower v. State," the facts consisted of a fire burning a church shortly after
midnight. The weather was fair. There were no electrical wires connected to the
building, which had been cleaned and the windows closed about a month. After the
fire a set of tracks of ordinary stride, were seen leading up to the church; and another
set, of greater stride, went away from the building. When bloodhounds were brought
to the scene they merely stood around, looking at defendant. Defendant was not a
member of church and had no connection with it; but he had obtained two insurance
policies for $1,500 each on the building. Defendant confessed. The court, in part of
its opinion, stated:
To prove the corpus delicti it is necessary for the State to show that the church burned
and that the burning was caused by a criminal agency.... It is well settled that the
evidence in proof of the corpus delicti does not have to be entirely independent and exclusive of the confession. It is sufficient when the corpus delicti is established by other
evidence and the confession taken together.
Curtis, Arson, states in Section 276:
CONFESSIONS-One accused of the crime of arson, although he has voluntarily made a
confession, cannot be convicted unless there is other evidence to show the corpus
delicti.
The above section merely emphasizes what we have already considered: that a
confession plus corroboration does not necessarily equal a conviction. The confession
plus the corroborating evidence must show the guilt of the accused beyond a reasonable doubt. And before a confession or admission of guilt can be introduced into
evidence there must be proof that the crime charged has been committed.' In the
cited case the court said: "In a charge for arson there must be some evidence of a
fire in order to convict".
GENERAL AND SPECImIC EXAMPLES

Although our subject matter is being delimited as much as possible to the corpus
delicti in arson cases, it is not considered a digression to mention evidence in general
because all phases of arson investigation are interrelated. The guilt, or innocence, of
a particular accused can be proved by either direct or circumstantial evidence.' 0
The same statement holds true for proof of the corpus delicti. In the cited case,
Whatley v. State, the facts were that the fire was discovered around 3:15 o'clock in
the morning. An automobile was heard to pull away from the house a few minutes
before. There were three separate fires; dresser drawers had been pulled out and filled
with kerosene soaked papers; and holes had been cut in the walls. There were no
8fljfd.

'Jeferson v. Sweat, 76 So. 2d. 494 (1954).


1oWiatley v. State, 37 Ala. 706, 75 So. 2d. 182 (1954).

WILLIAM H. HOPPER

[Vol. 47

personal effects in the house; and a witness had these effects. All windows were
shielded by shades, bed spreads, or sacks. In its opinion the court stated:
In arson the corpus delicti consists first of a building burned; and second, that it was
wilfully fired by some responsible person, and the guilt of the defendant may be proven by
circumstantial evidence as well as by direct evidence.
Using some specific cases as examples, let us consider People v. Burrows," where
there was evidence of three separate fires; with charred paper in the hole burned by
each fire. Much of the household and personal effects had been removed. A partial
list of the furnishings was found in the defendant's purse following the fire. Also, the
defendant had the opportunity to notify the fire department but failed to do so. The
court, in effect, stated that the above evidence was sufficient to establish the corpus
delicti and prove that defendant was the guilty party.
In Boroquez v. State,12 the essential facts were that the defendant came home
intoxicated; and was later seen carrying some personal effects from a room of the
house, while smoke was pouring from this room. When arrested at the scene the
defendant's clothing had an odor of kerosene; and there was kerosene in the room
where the fire occurred. Thus, it is easy to understand how the court could say:
"The conclusion that the house was incendiarily set afire is authorized by the presence
of kerosene in various places and on different objects of the room". Special attention
should be given to personal effects by the arson investigator. It is human nature to
wish to preserve that which has special meaning or value to us; and often the arsonist
is unable to resist the temptation to remove a treasured photograph, Bible, shotgun,
et cetera. The removal of such articles would be circumstantial evidence tending to
establish the corpus delicti.
Quite often an accomplice can prove to be the key in helping us to show the corpus
delicti. In People v. Adams, 3 an admitted accomplice testified that the automobile
had been set afire in two separate places. A Special Agent of the Automobile Theft
Bureau testified that the fire around the motor had not passed to the interior of the
automobile and was thus a separate fire from the interior one. The court stated:
"The evidence relating to the setting of the fire in two separate places in the automobile corroborated the testimony of the accomplice that it was of incendiary origin,
and not the result of an accident." It is quite evident that under the above set of
facts the testimony of only one of the witnesses would not have been sufficient.
In Hurst v. State,14 the facts were that defendant and his wife had separated; and
the wife moved in with a sister. On night of fire defendant was seen standing near
the sister's house. His footprints were identified. Three witnesses testified that
defendant had asked them for some matches shortly before fire was discovered. One
witness gave defendant matches. Two oil lamps were found at a cotton patch after
defendant's tracks were traced to this patch. The lamps were identified as property
1 119
12 158
13 119
14Op.

Cal. 2d. 753, 260 P. 2d. 137 (1953).


Tex. Cr. R. 568, 258 S. W. 2d. 318 (1953).
Cal. 2d. 445, 259 P. 2d. 56 (1953).
cit. supra.

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of the sister. Defendant confessed to burning the sister's house. In part of its opinion
the court stated:
In a case of arson, the corpus delicti consists in the proof of three fundamental facts:
first, the burning of the house described in the indictment; second, that a criminal agency
was the cause of the burning; and third, that the defendant was the criminal agency.
Submitted that the above is loose legal thinking in that the court has actually
defined the elements necessary for an arson conviction, including the corpus delicti.
In Slate v. Perras,6 the facts were that defendant had worked in a restaurant;
but because of an argument he had quit. Later defendant threatened to put the
restaurant owner out of business. Shortly before the fire was discovered a witness
saw the defendant run down an alley behind the restaurant. A piece of burlap, a
cigarette stub, and a partly burned match folder was found at the point of origin. The
defendant denied being behind the restaurant. The court held that the above facts
were sufficient to establish the corpus delicti, and the defendant's responsibility for
the criminal agency.
The exact statistics are not known, but probably not one arson case in several
hundred has an eye witness which the investigator is able to produce in court. And
yet, some prosecutors, courts, and investigators continue to speak of having an eye
witness. For example, take Hall v. State,1 6 in which the facts were that defendant,
although married, was attempting to get the owner of the burned house to live with
him. He had threatened to burn her house, and even to kill her. He was at her house
drunk on the evening of the fire. The owner took her two children and spent the
night at another location. Shortlybefore the fire the defendant was seen in thevicinity
of the house. Less than thirty minutes later the house burst into flames and burned.
Defendant was convicted of arson. In reversing and remanding the case the court
stated:
It appears from a study of the record that no one saw appellant set the house afire;
neither did anyone testify that such house was set afire; but circumstances alone are relied
upon. There seems a strong possibility that same could have caught afire from a heater or
pilot light therein.
While we have motive and the declaration of an intent, such being useful, still such is not
conclusive of guilt. For the lack of proof that the fire which destroyed this house was of
incendiary origin, the judgment will be reversed and the cause remanded.
Note that the court said that "no one saw appellant set the house afire." This is
believed to be an unfortunate semantical use, for without full comprehension the
layman is quite likely to take too literally such utterances. For a simple example:
The average person is still under the misconsception that in order to prove the crime
of murder the prosecution must produce the body of the victim. The corpus delicti
in murder does not consist of only the body of the victim. Using an analogy, the
body of the deceased could be compared with the burned building-neither one of
15Op. cit. supra.
16 155 Tex. Cr. R. 235, 233 S. W. 2d. 582 (1950).

WILLIAM H. HOPPER

[Vol. 47

which, in and of itself, would prove the corpus delicti. However, also note where the
court said that "same could have caught afire from a heater or pilot light therein."
This stresses the importance of proving the lack of an accidental fire, especially
if our proof of the corpus delicti is on the weak side.
Of course, it is natural that there will be differences of opinion as to exactly what
the corpus delicti should consist of; but this is merely variations on our scale of gray
hues ranging from the solid black to the pure white. Somewhere along the scale we
have accumulated sufficient evidence of probative value to prove the corpus delicti
in our arson case. The exact location on the scale where this result occurs is impossible
to delineate. For an example of a case which approaches the light gray area-that
point which almost means sufficient proof of the corpus delicti-consider Burris
v. State." The facts were that defendant's father, a farmer, had moved to town and
gone into the grocery business. The family was unhappy, and the business was advertised for sale. There was insurance coverage of $6,000. A fire destroyed the building
and stock. Near the rear of the building there was a pile of boxes, matches, and other
articles some of which had been saturated with coal oil. A witness testified he was
with defendant in a cafe near the grocery store, when defendant left the cafe for
about fifteen minutes. When he returned he "was breathing pretty hard and sort of
nervous." About ten minutes later they left the cafe and drove out of town. They
were gone about thirty minutes when they heard the fire alarm. Defendant insisted
that it was the grocery store. He later told the witness he had set the fire. Defendant's signed confession was admitted into evidence, and he was convicted of arson.
In reversing and remanding the case, the court stated:
Appellant's extra-judicial confession will not sustain a conviction unless the state is able
to establish by evidence, beyond a reasonable doubt, the corpus delicti; that is, that the
fire was of incendiary origin. Other than the foregoing statement, we find no fact or circumstance indicating that the fire was of incendiary origin. There is no evidence from any
source that appellant was seen at or about the store on the night in question; nor is it shown
that when he left the cafe he went in the direction of it. He told of tearing boards off of the
window in order to set the inside afire. There is no evidence to show that this was done.
There is no proof of tracks about the window to indicate that appellant or anyone else was
there. In fact, there is an entire lack of evidence on the subject.
However, on the State's motion for rehearing, which was overruled, one judge
dissented. In part of his dissenting opinion he stated:
It has been held in many cases that a confession standing alone is not sufficient to
establish the corpus delicti of an offense. However, in Kugadt v. State, 38 Tex.Cr.R. 681,
44 S.W. 989, 996, the leading case relative to such, we find the following: 'In other words,
in the establishment of the corpus delicti, the confessions are not to be excluded, but are to
be taken in connection with the other facts and circumstances in evidence'. Said case
quotes with approval an excerpt taken from 4 American and English Encyclopedia of
Law, p. 309: 'Full proof of the body of the crime, the corpus delicti, independently of the
confession, is not required by any of the cases; and in many of them slight corroborating
facts were held sufficient'.
17

154 Tex. Cr. R. 399, 227 S. W. 2d. 538 (1950).

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We think the motive is apparent, the opportunity present, the fire set and burning where
appellant said, the unusual hour, and the knowledge of the identity of the store upon the
part of appellant, as well as his statements to the officers, can all be taken together, and in
connection with these confessions, were sufficient to satisfy the trial jury that this was an
incendiary fire and set by someone at the early hour of 3:00 o'clock in the morning....
It is not possible to outline or detail exactly what will constitute sufficient evidence
to prove the corpus delicti in a particular case since each case is different as to facts
and circumstances. Take for example, Ricketts v. State,18 in which the facts were that
the owner of the house had built a fire in a stove early in the morning. The owner
and her children left around 9:00 o'clock, and apparently the stove fire had gone out.
There was no electricity connected to the house. Owner had left a two gallon can of
kerosene on the porch. There had been hard feelings between owner and defendant;
and defendant confessed to setting the fire. In part of its opinion the court stated:
No universal and invariable rule can be laid down as to what would amount to proof of
corpus delicti. Each case depends upon its own peculiar circumstance. But in every case of
arson two fundamental facts must appear: first, a burning; and second, some criminal
agency which caused the burning. In other words, the corpus delicti in a case of arson is
not merely the burning of the house in question, but that it was burned by the wilful act of
some person, and not as a result of natural or accidental cause; for if nothing appears but
the mere fact that the house was consumed by fire, the presumption is that the fire was a
result of accident or some providential cause.
The confession of one that he burned the building alone will not authorize a conviction.
This confession must be corroborated by evidence which, independently of the confession,
tends to establish the corpus delicti.
A perusal of different sets of facts will enable us to form a general basis from which
we can conclude certain principles. Using hypothetical cases, let us consider the
following: We have a building fire, but there is no physical evidence of incendiarism.
Both the origin and cause are undetermined. Neither electric wiring nor spontaneous
ignition can be eliminated. Perhaps we cannot even eliminate the remote possibility
of sparks having ignited the building on the outside. We do not obtain a confession.
There is no real motive for the fire. The entrances and exits were all found to be
securely fastened when the firemen arrived. It is not believed that the above set of
facts would constitute sufficient evidence (or any evidence) tending to prove the

corpus delicti.
Using the same building fire and facts, except for the following changes: The
electrical wires had been disconnected prior to the fire. Although the cause is undetermined, the fire originated near an interior stairway; and there were two wastepaper drums in this area. Also, the owner was in financial straits, and the building
was overinsured. We still do not have a confession. This set of facts seems to move a
notch along the scale toward the proof necessary to show the corpus delicti; but it
is still not sufficient. From the standpoint of facts necessary for a conviction, consider
State v. Levesque,19 in which one witness testified he found defendant standing in the
18192 Tenn. Rep. 649, 241 S. W. 2d. 604 (1951).
19146 Me. 351, 81 A. 2d. 665 (1951).

WILLIAM H. HOPPER

[Vol. 47

cellar near a pile of burning rubbish. No part of the apartment house was burning.
Defendant lived in the house with his parents. The fire department found a small fire
in some papers on the floor of the cellar. The defendant gave a written statement that
he set the fire in papers against a wood partition and waited until the wood started
to burn. Defendant was convicted of arson. The verdict was set aside and a new trial
granted. The court stated:
The authoritative textbook writers and many courts have defined the term 'corpus
delicti' and in the case of arson have stated that it is made up of two elements, the one,
the burning, the other, that some one is criminally responsible for the result.
The weight of authority in this country, at least, appears to be from the decided cases
that the corpus delicti cannot be established by the extra judicial confession of the respondent unsupported by other evidence.
In Priest v. State, 1880, 10 Neb. 393, 399, 6 N.W. 468, 470, the court said in speaking of
confessions and corpus delicti: ***Nor is there sufficient evidence of the corpus delicti.
That a crime has actually been committed must necessarily be the foundation of every
criminal prosecution, and this must be proved by other testimony than a confession, the
confession being allowed for the purpose of connecting the accused with the offense'.
There is no definite or even circumstantial proof that any portion of the building was
burned in the slightest degree or even ignited which is necessary to establish the corpus
delicti.... mere suspicion without due proof of the corpus delicti or the crime charged will
not take the place of evidence.
As we all know there are some juries who will return a not guilty verdict in spite
of the State's case. However, as already pointed out, this is beyond the function of
the arson investigator, and if he has competently and faithfully performed his own
function he need not concern himself with losing a case ever so often. It happens to
all of us.
Again using the same building fire and set of facts in the second hypothetical case;
but now we have a confession from the owner that he set the fire. The circumstantial
evidence when considered along with the confession would probably be sufficient to
establish the corpus delicti in the majority of jurisdictions.
With the same building fire; but now we have an ignition device; or saturated
paper was found at the point of origin; or there were separate fires; or there was a
strong odor of a flammable liquid, all of which were foreign to the premises. Any of
these facts would likely tend to prove the corpus delicti. Note that this has not established any particular person as being responsible for the criminal agency; but
has merely shown or tended to show that there was a burning, as a result of a criminal
agency (by the hands of a human being). Remember that the actual connection of
the accused with the crime has no part of the corpus delicti. Such connection would
be the third element of the crime of arson-that the accused was responsible for the
criminal agency.
Consider People v. Hays,2 where the defendant, owner of house, had insurance
coverage of $4,500; and she had advertised the property for sale at $5,500. She increased the coverage to $6,000 on January 7, 1950. The occupant had moved out and
left the house clean-last inspection being January 3rd. A witness saw defendant
20 101 Cal. 2d. 305, 225, P. 2d. 600 (1950).

19561

ARSON'S CORPUS DELICTI

carry an amber colored gallon bottle into the house on January 6th. This witness
saw the defendant at the house again on January 10th. in the morning; and that
evening he saw lights on in the rear of the house. At 2:30 A.M., January 11th, this
witness was awakened and discovered the fire. The front and rear doors were forced
open by the firemen, who found at least four separate fires in different rooms. One
back door was open, but the screen was hooked on the inside. There were holes in
some of the walls, and newspapers were stuffed into one hole. There was a box containing papers beneath one of the holes. A gas heater was turned on but not lit. The
court stated in part of its opinion:
It has been repeatedly held that incendiary origin of a fire is generally established by
circumstantial evidence such as the finding of separate and distinct fires on the premises.
Defendant appears to contend that the evidence of the corpus delicti was insufficient
because it was not shown that defendant was present when the fire was set, nor were the
means by which the fire occurred shown. The connection of the defendant with the crime
is no part of the corpus delicti.
CONCLUSION

In reiteration, we first must prove that a burning occurred. This may be done
through the testimony of firemen and other witnesses; through photographs; from a
direct visit to the scene by the court; or perhaps by other means. Secondly, we must
prove that this burning was the result of a criminal agency; and when this is done
we have the corpus delicti-that a crime has in fact been committed. The first step is
easy, but the second one is where we run into difficulty.
For a workable solution to the second step (proving the criminal agency, and
thus the corpus delicti) we do not have to become lawyers, prosecutors, soothsayers,
et cetera. Our problems are complicated enough without adding more fuel to the
fire, so let us endeavor to use the simple and direct approach as much as possible. As
a rule of thumb: Any evidence, direct or circumstantial,which tends to prove beyond a
reasonabledoubt that the fire in question was in fact a set fire is sufficient proof of the
criminal agency. We have already shown that this evidence varies widely in degree,
quality, and quantity. It is not necessary in all cases to completely eliminate all
possible accidental causes. For example, if we have positive proof of an incendiary
fire the failure to eliminate the possibility of electrical wiring also causing another
fire will not distract from our case. Of course, it is always best to eliminate the accidental causes if possible.
Proving a fact beyond a reasonable doubt does not mean proving it beyond all
2
' the
other possibilities and probabilities. For example, in State v. Guastamachio
court said: "Proof beyond a reasonable doubt does not require proof beyond a possible
doubt." The mere possibility that something else might have occurred and caused
an accidental fire does not altogether throw out our case in proving the corpus delicti.
In defining reasonable doubt, Curtis, Arson, Section 483, states:
It is such a doubt as reasonable, fair-minded, and conscientious men will entertain
under all the facts and circumstances of the case. The prosecution need not prove guilt
2

1 Op. cit. supra.

WILLIAM H. HOPPER

[Vol. 47

with absolute certainty, but should present sufficient evidence to produce a moral certainty of guilt, removing every reasonable hypothesis save that of the defendant's guilt.
Beyond a reasonable doubt is just what the reasonable man would believe. (Submitted that we have and will run into those who do not reason as a reasonable man
should). For example, in State v. Levesque22 the court said: "It is a doubt which a
reasonable man of sound judgment, without bias, prejudice, or interest, after calmly,
conscientiously, and deliberately weighing all the testimony, would entertain as to
the guilt of the prisoner".
We are working with both the tangible and the intangible in establishing the
corpus delicti. For this reason it is not always possible to assess the probative value
of our evidence during the investigation. But it is not our duty as investigators to
make the final decision as to whether there is sufficient evidence upon which to
prosecute. However, as investigators we can endeavor to secure direct and circumstantial evidence tending to prove the corpus delicti-and the accumulative effect of
this evidence should place the corpus delicti as close as possible to the white area on
our scale. Thus, when our evidence moves along the scale from the black to the white,
and slowly emerges from the deeper tones of gray to the lighter grays, we will have
achieved our purpose of proving the corpus delicti.
Always remember that our proof of the corpus delicti may never be completely in
the white area of the scale. And our maturity, as well as our competency as arson
investigators, depends upon our personal ability to distinguish the important from
the unimportant.
Op. cit. supra.